US v. Tayari Rafiki Mitchell


UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to file supplemental brief(s) [1000002005-2] Originating case number: 1:11-cr-00174-CCE-1 Copies to all parties and the district court/agency. [1000020654].. [16-4275]

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Appeal: 16-4275 Doc: 42 Filed: 02/09/2017 Pg: 1 of 6 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4275 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TAYARI RAFIKI MITCHELL, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:11-cr-00174-CCE-1) Submitted: January 30, 2017 Decided: February 9, 2017 Before AGEE and WYNN, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Stacey D. Rubain, QUANDER & RUBAIN, Winston-Salem, North Carolina, for Appellant. Ripley Rand, United States Attorney, Angela H. Miller, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 16-4275 Doc: 42 Filed: 02/09/2017 Pg: 2 of 6 PER CURIAM: In 2011, Tayari Rafiki Mitchell pled guilty to possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1), and possession with intent to distribute cocaine violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). base, in The district court sentenced him as an armed career criminal pursuant to 18 U.S.C. § 924(e), and as a career offender Sentencing Guidelines Manual § 4B1.1. pursuant to U.S. In 2012, Mitchell filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. after the The district court granted Mitchell’s motion Government conceded that Mitchell should be resentenced because he no longer qualified as an armed career criminal. Mitchell However, still on merited resentencing the career the court offender imposed a prison sentence of 160 months. found that enhancement and On appeal, Mitchell challenges the court’s career offender determination. We review de novo a district court’s determination that a prior state conviction qualifies as a career offender predicate. United States v. Jones, 667 F.3d 477, 482 (4th Cir. 2012). A defendant is a career offender if (1) he was at least eighteen years old when the instant offense was committed, (2) the instant offense is a felony and is either a crime of violence or a controlled substance offense, and (3) he has at least two prior felony convictions for crimes of violence or controlled 2 Appeal: 16-4275 Doc: 42 Filed: 02/09/2017 substance offenses. Pg: 3 of 6 See U.S.S.G. § 4B1.1(a) (2015). The third requirement is satisfied where “(1) the defendant has previously sustained at least two felony convictions of either a crime of violence or sentences a for controlled at least substance two of the convictions are counted separately.” 720 F.3d 215, 217 (4th Cir. offense; 2013) and (2) aforementioned the felony United States v. Davis, (internal quotation marks omitted); see U.S.S.G. § 4B1.2(c). In his counseled brief, Mitchell concedes that one of his prior convictions — North Carolina felony assault with a deadly weapon with constitutes intent a to career kill inflicting offender serious predicate, but injury disputes — the district court’s finding that his prior conviction for North Carolina felony possession with intent to sell (“PWISD”) cocaine also qualifies as a predicate. Mitchell contends that a sentence was never and deliver Specifically, imposed for his PWISD cocaine conviction, and, therefore, it cannot be counted as a prior conviction for a controlled substance offense. Mitchell’s PWISD cocaine conviction was consolidated for judgment with several other convictions, the most serious of which was a conviction for cocaine trafficking that carried a 3 Appeal: 16-4275 Doc: 42 Filed: 02/09/2017 Pg: 4 of 6 maximum penalty of 15 years’ imprisonment. 1 Because the maximum sentence for a PWISD cocaine conviction was 10 years, Mitchell asserts that his sentence of 12 years must have been imposed only as to the cocaine trafficking conviction. In support of his argument, Mitchell seeks to expand the holding of United States v. Davis, in which we found that a consolidated sentence under the North Carolina Structured Sentencing Act results in a single sentence that may serve only as one sentence for purposes of determining whether a defendant is a career offender. 720 F.3d at 218-20. Mitchell, however, was sentenced before the October 1, 1994 effective date of the Structured Sentencing Act’s “consolidated sentence” provision, N.C. Gen. Stat. § 15A-1340.15. sentence, North separate sentences Davis, 720 F.3d Carolina in at At the time of Mitchell’s state defendants offenses 219. like “consolidated Moreover, a Mitchell for sentence received sentencing.” imposed on convictions consolidated for judgment was based not only on the maximum sentence for the most serious crime of conviction, but also on the convictions. presumptive N.C. sentences Gen. Stat. 1 assigned to each § 15A-1340.4(a) of the (1988). Because the Government has conceded that the state conviction for cocaine trafficking is not a proper predicate offense, we do not consider this as a potential career offender predicate. 4 Appeal: 16-4275 Doc: 42 Therefore, we Filed: 02/09/2017 find Pg: 5 of 6 Mitchell’s reliance on unavailing. 2 Davis Further, his reference to N.C. Gen. Stat. § 15A-1340.4(a) (1988) does not rescue his argument. As the district court noted, it appears from the face of the judgment that the state convictions listed therein. sentence was imposed as to all Specifically, the state judgment states that the court “Orders the above offenses be consolidated for judgment and the Twelve (12) Years.” defendant be imprisoned that sentence this sentence resulting from conviction. term of was In addition, there is no counted Mitchell’s separately other from qualifying the prior See U.S.S.G. § 4B1.2(c). Accordingly, we affirm Mitchell’s judgment request to file a pro se supplemental brief. oral a None of the arguments advanced by Mitchell renders this judgment any less clear. doubt for argument because the facts 2 and legal and deny his We dispense with contentions are We also note that, were Davis applicable to Mitchell’s case, it would not save his claim. Davis states that “where a defendant receives a ‘consolidated sentence’ (or ‘consolidated judgment’) under North Carolina law, it is one sentence and absent another qualifying sentence, the enhancement is inapplicable.” 720 F.3d at 219. Here, the district court counted Mitchell’s sentence for PWISD cocaine, which was consolidated for judgment with his cocaine trafficking conviction, as a single prior sentence, consistent with Davis. 5 Appeal: 16-4275 Doc: 42 adequately Filed: 02/09/2017 presented in the Pg: 6 of 6 materials before this court and argument would not aid the decisional process. AFFIRMED 6

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